Delhi

StateCommission

CC/270/2015

SH. TARUN SIKKA & ANR. - Complainant(s)

Versus

M/S UNITECH LTD. - Opp.Party(s)

14 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 14.02.2019.

 

Complaint Case No. 270/2015

 

In the Matter of:

       

1. Tarun Sikka

S/o Sh. Jagpal Krishna Sikka

 

2. Ms. Poonam Sikka

W/o Sh. Tarun Sikka

 

Both R/o Flat No.182,

Rail Vihar, Sector-33,

Noida. U.P.……Complainants

 

Versus

 

M/s. Unitech Ltd.,

Through its

Chief Executive Officer and

Managing Director,

Regd. Office At:

6, Community Centre,

Saket, New Delhi-110017.…….Opposite Party

 

 

CORAM

 Justice Veena Birbal, President

Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.   To be referred to the reporter or not?                                                                     Yes

 

 

 

 

SALMA NOOR, MEMBER

1.         Present complaint is filed under Section 17 of the Consumer Protection Act 1986 (in short the ‘Act’).
2.           Briefly facts of the case are that Mr. Tarun Sikka and his wife Ms. Poonam Sikka i.e. complainants herein jointly booked a unit in the residential complex of OP, “The Residencies” in Sector-117, Noida, Uttar Pradesh by paying Rs.5,80,000/- to OP on 22.01.2012 towards registration amount. The complainants opted for Flexi Plan as mode of payment. OP issued a demand notice dated 21.04.2012 along with allotment letter dated 31.01.2012 duly signed by the Marketing Division of Noida stating therein that the complainants have been provisionally allotted a residential complex bearing Unit No.0304 on floor no.3 in Tower-C-1, measuring 1665 sq. ft. having 3 Bedrooms of aforesaid complex. The provisional allotment letter was signed by the complainants on 28.04.2012. It is stated by complainant that as per the terms and conditions, the total consideration amount of the unit was 57,82,781/- out of which Rs.5,77,617/- was to be paid upto 31.01.2012 and Rs.21,37,185/- was to be paid within 45 days and rest to be paid on completion of floor roof. As per complainants they paid Rs.5,80,000/- on 22.01.2012. For further payment of Rs.21,27,185/- the complainants took a loan from HDFC Bank and a tripartite agreement was executed for obtaining the loan from HDFC on 14.05.2012 in the registered office of OP i.e. in 6, Community Center, Saket, New Delhi. The loan of an amount of Rs.44,00,000/- was approved by the HDFC, and an amount of Rs.16,15,715/- was sanctioned by HDFC with a monthly instalments of Rs.17,000/-. The complainants further paid an amount of Rs.6,00,000/- (Rs.1,00,000/- on 15.05.2012 and Rs.5,00,000/- on 16.05.2012). Complainants have stated that by 23.05.2015 they had paid a sum of Rs.27,95,715/- to OP, out of total sale consideration of Rs.57,82,781/-. Complainant has further stated that as per terms and conditions of the agreement the possession of the residential complex was expected to be handed over to the complainants within 36 months.
3.           The grievance of the complainants is that OP has failed to give the possession of the said residential complex within the stipulated period and even the OP has not given the status report of the said complex. It is alleged by the complainants that they have personally visited the site to know the actual position, but were surprised to know that nothing was done for developing the complex. Thereafter, the complainants sent a letter to OP dated 18.02.2015 to know the present status and also demanded the copy of the approved plans and ownership through speed post, but no reply was received from the OP. Thereafter complainants served a legal notice dated 13.03.2015 which was also not replied by the OP. Alleging deficiency in service on part of OP, present complaint is filed by the complainants with the prayer to direct OP to refund Rs.27,95,715/- with interest @ 24% p.a. and a sum of Rs.15,00,000/- towards compensation.
4.           On notice, OP appeared and filed written statement wherein it is admitted by the OP that complainants were allotted subject unit i.e. Unit no.0304 on Floor no.3 in Tower-C-1, ad measuring 1665 sq. ft. for the total sale consideration of Rs.57,82,781/-. It is also admitted that the detailed terms and conditions of the provisional allotment letter dated 28.04.2012 (referred to as ‘Agreement’) was executed between the parties. It is also admitted that the complainants have paid Rs.27,95,715/- to the OP towards total sale consideration amount of the unit. It is further admitted that the possession of the unit was expected to be delivered within 36 months, however the same was subject to Force Majeure circumstances as stated in clause 5(A) of the Agreement. OP has submitted that as per clause 5(C)(ii) of the Agreement in case of any delay on the part of OP/developer in handing over the possession of the apartment, the OP would be liable to pay charges to the tune of Rs.5/- per sq. ft. per month of the Super area for the period of delay in offering the possession of the apartment, however the same is again subject to Force Majeure circumstances. It is submitted that prayer made by the complainants to the effect that the damages be paid along with interest @24% per annum is not maintainable. Clause 5D of the agreement clearly shows that in case the amount is deposited by the complainants is to be refunded the same will be refunded with simple interest @10% from the date of payment by the respective purchases.
5.           Complainants filed rejoinder whereby the complainants have reiterated the facts as stated in the complaint case and have further stated therein that OP with malafide intentions failed to redress the grievances of the complainants and cheated them. It is further stated that OP has not given reply to the letters of complainants dated 18.02.2015 and legal notice dated 13.03.2015 which shows the callous attitude of the OP. It is alleged that OP has swallowed the hard earned money of the complainants and now making lame excuses for not refunding their money.
6.           Complainant-1 i.e Tarun Sikka has filed evidence by way of affidavit wherein the facts stated in the complaint case have been reiterated on oath and has also exhibited on record application form forwarding sheet, Ex.CW-1/1; receipt dated 24.03.2012, Ex.CW-1/2; provisional allotment letters dated 21.04.2012 and 31.01.2012, Ex.CW-1/3 and Ex.CW-1/4 respectively; schedule of payment dated 31.01.2012, Ex.CW-1/5; demand letter dated 31.01.2012, Ex.CW-1/6; letter dated 31.01.2012 confirming receipt of Rs.5,80,000/-, Ex.CW-1/7; terms and conditions of allotment, Ex.CW-1/8(Colly) 1 to 20; tripartite agreement dated 14.05.2012, Ex.CW-1/9 (A to D); cheque of Rs.1,00,000/-, Rs.5,00,000/- and Rs.16,15,715/- Ex.CW-1/10 to Ex.CW-1/12 respectively; letter to OP enquiring about status of apartment, Ex.CW-1/13 and legal notice to OP dated 13.03.2015, Ex.CW-1/14.
7.           OP has not filed evidence by way of affidavit despite giving sufficient opportunities, hence right to file evidence of the OP was closed vide order dated 10.08.2017. Thereafter the complainants have filed written arguments. OP has also not filed any written arguments.
8.           We have heard the parties and perused the material on record.
9.           There is no dispute between the parties that aforesaid unit was booked by the complainants with the OP and the complainants have also paid a total sum of Rs.27,95,715/- towards total sale consideration. The grievance of the complainants is that as per terms and conditions of the Agreement the possession of the residential complex was expected to be handed                                              over within 36 months of executing the agreement, and that said period has already expired. Clause 5C(ii) of the Agreement states that if the Developer i.e. Unitech fails to handover the possession within the stipulated period of 36 months OP will pay charges @ Rs.5/- per sq. ft. per month for the period of delay in offering the possession of the apartment.
10. OP in the written statement has taken the plea that due to force majeure circumstances OP is unable to hand over the possession of the apartment to the complainants. The force majeure circumstances alleged are restrain orders passed by National Green Tribunal regarding ground water extraction for construction purposes as a result of which OP had to depend on Noida/Greater Noida Authority for supply of water for construction and related purposes.  The other force majeure circumstances alleged is agitation by farmers in Noida and Greater Noida and filing of writ petitions by farmers in Allahabad High Court. It is alleged that there was strike by farmers due to which there was disruption in construction activity. To substantiate its above plea OP has not filed any affidavit in support of his contention. In such circumstances the above plea taken by the OP has no substance as the same has remained unsubstantiated. Even if for the sake of arguments we consider the above plea, in this regard, the same has already been rejected by National Commission in other projects of OP at Noida. Reliance is placed on the judgment of Richa Aggarwal and Anr. vs. Unitech Hitech Developers Ltd., I (2017) CPJ 216 (NC); S.N. Mohanty vs Unitech Hitech Developers Ltd., I (2017) CPJ 550 (NC); Krishna Swami Subramanium vs Unitech Hitech Developers Ltd., III (2017) CPJ 682 (NC).
11. Thus, we find no force in the plea of Force Majeure taken by the OP in the written statement. From the unrebutted evidence filed by the complainants it is proved that despite having received about 50% of the consideration amount OP has failed to develop the complex.
12. In absence of any evidence for failure to comply with the stipulation of delivery of possession, it is our considered view that OP has committed deficiency in service and has also indulged in unfair trade practice.
13. Regarding the question of compensation, Clause 5(D) of the Agreement deals with the compensation to be paid by the OP in case OP is unable to offer possession.
    4.  

“If for any reason the Developer is not in a position to offer the allotted Apartment, the Developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with Simple Interest @10% per annum without any further liability to pay damages or compensation of any kind whatsoever..”

 

14. On reading of the above, it is clear that if for any reason, the OP is not in a position to offer possession of the apartment, the OP shall refund the amount with simple interest @10% p.a. (from the date of payment by the purchaser) without any further liabilities. There is no dispute that OP has failed to deliver the possession of the apartment till today. The complainants cannot be expected to wait for possession of the apartment for an indefinite period. 
15. In view of the above discussions, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.27,59,715/- paid to the complainants within eight weeks from today alongwith simple interest @10% from the date of each deposit till the realization.

 

16. Copy of the orders be sent to the parties free of costs as per rules. Thereafter file be consigned to Record Room.

                                                               (Justice Veena Birbal)

                                                                     President

 

 

                                                                  (Salma Noor)

                                                                            Member